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Critically consider all arguments concerning spousal compellability and conclude whether or not it is justifiable.

Extracts from this document...

Introduction

In 1940, Wigmore described the rule that spouses should not be compellable as: �the merest anachronism, in legal theory, and an indefensible obstruction to truth, in practice.� 1 Whereas Lord Wilberforce stated: �to allow her to give evidence would give rise to discord and perjury and would be, to ordinary people, repugnant.�2 These are two very differing opinions, highlighting the fact that spousal compellability is a highly debatable area of law. Under section 80 of the Police and Criminal Evidence Act 19843 (PACE), spouses are non-compellable unless the offence is one which is specified.4 This spousal privilege has sparked intense criticism and renders the justification questionable. Utilising academic opinion, case authority and relevant sources, I will critically consider all arguments concerning spousal compellability and conclude whether or not I think it is justifiable. Hoskyn v Metropolitan Police Commissioner5was the first significant step towards the PACE. This case concerned a marriage two days before the trial date, the defendant was convicted and he appealed on the grounds that his wife should not have been a compellable witness. The House of Lords ruled that when her husband is charged with violence against her, she is competent but not compellable. There were dissenting judges and vast criticism because of this decision and this ultimately led to a reform in the law. The Criminal Law Revision Committee proposed changes; they stated: �the previous rules on competence and compellability unnecessarily deprived the courts of the evidence of a wife prepared to testify against her husband.� 6 These proposals, along with the outcome of Hoskyn7, led to the reform of the law with the enactment of the PACE section 80. Creighton comments:  �Section 80 of PACE has effected significant changes to the law...In particular, it has overturned the assumptions of the previous law, namely that a wife should be competent for the prosecution only in exceptional cases, and should never be compellable.�8 Taper agrees, stating: �the modern law on this topic has been greatly simplified by the Police and ...read more.

Middle

It would be almost impossible for a spouse to benefit from the spousal compellability rule, which was enacted to protect marital harmony, when they are oblivious of their rights (in circumstances until the spouse takes the oath40). In R v L41, despite the spouse being non-compellable, the judge ruled that it was in the interests of justice to admit a previous police statement in evidence under the Criminal Justice Act 200342. Lord Phillips stated: ?Compelling a wife to give evidence is not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 of PACE does not pose a legal bar to the admission of such evidence.?43 A spouse cannot be forced to testify at trial, yet the police do not have to tell the spouse that she is non-compellable. Not alerting her, and using section 114 of the Criminal Justice Act to bring her statement in as evidence completely undermines section 80 of PACE. A fairer situation would have been for the CoA to say she is not compellable, but call on Parliament to revisit the issue of spousal exemption. R v L44 is a perfect example that the current law on spousal compellability is not justifiable. The benefits of spousal compellability are severely weakened, first, by allowing other evidence to be admitted to overcome the fact that the spouse is non-compellable, and second, by the police keeping the spouse in the dark with regards to her rights. Under section 80(3) of PACE45, a spouse is will only be compellable if the offence is specified. The section46 has given more protection to children; however it only applies to children ?under the age of 16.?47 It is questionable as to why there is an arbitrary age limit, and the consequences were seen in R v L48. There is an assumption that only people under the age of 16 are vulnerable, for example, Harold Shipman?s victims were elderly, his wife was present at one of the murders, however because the victims were not under 16 the wife was not compellable. ...read more.

Conclusion

46 The Police and Criminal Evidence Act  1984 Section 80(3)(a)  and (b) 47 The Police and Criminal Evidence Act  1984 Section 80(3)(a) 48 R v L [2009] 1 WLR 626 � Because the victim was 19 at the time of the offence, the wife was not compellable, despite the victim being subject to similar offences since a young age. 49 The Police and Criminal Evidence Act  1984 Section 80(3) 50 Peter Creighton, Spouse Competence and compellability, CLR 1990 51 Colin Taper, Cross and Taper on Evidence, 2010 52 BC Naud�, Spousal competence and compellability to testify: A reconsideration (South African Journal of Criminal Justice 324 (2004) p330 53 Hoskyn v Metropolitan Police Commissioner [1979] AC 474 54 The Police and Criminal Evidence Act  1984 Section 80 55 The Police and Criminal Evidence Act  1984 Section 80(3) 56 R v Pearce [2002] 1 Cr App R 39 57 R (on application of CPS) v Registrar General of Births, Deaths and Marriages [2003] 1 All ER 58 R v L [2009] 1 WLR 626 59 The Police and Criminal Evidence Act  1984 Section 80 60 The Police and Criminal Evidence Act  1984 Section 80(3) 61 The Guardian, Marriage Rates in the UK, available at www.guardian.co.uk/news/datablog/2010/feb/11/marriage-rates-uk-date accessed 03 November 2010-11-10 62 J Sopinka, SN Lederman and AW Bryant The Law of Evidence in Canada (1992) 690 63 BC Naud�, Spousal competence and compellability to testify: A reconsideration (South African Journal of Criminal Justice 324 (2004) p346 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ 1 This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ This document was downloaded from Coursework.Info - The UK's Coursework Database - http://www.coursework.info/ ...read more.

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Here's what a teacher thought of this essay

4 star(s)

Beyond the outdated nature of the law, the student should have addressed the exception to the rule in cases which involve an allegation of violence against the spouse or civil partner etc.; the arbitrary distinction drawn between married couples and long-term unmarried couples; the risks of compelling a witness to give evidence against a spouse (hostility, refusal to give evidence in contempt of court); and the usefulness of special measures to protect spouses in fear.

4 Stars.

Marked by teacher Edward Smith 08/07/2013

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